Alabama Acknowledges Dangers of Nitrogen Hypoxia Executions But Wants to Carry One Out Anyway

Posted in: Criminal Law

On January 25, Alabama intends to put Kenneth Smith to death using nitrogen hypoxia as its method of execution. If it does so it will be the first time that this method has been used in an American execution.

Alabama’s plan is just the latest chapter in a long-running American saga of efforts to find a foolproof execution technology. That saga has carried us from hanging to the electric chair, from the electric chair to the gas chamber, from the gas chamber to lethal injection, and now to nitrogen hypoxia.

The legitimacy of capital punishment depends upon the ability of those who wish to use it to find a method that will be safe, reliable, and “humane” and that will satisfy the Constitution’s requirement that punishment not be cruel. The survival of the death penalty is closely tied to the search for a technological magic bullet.

But so far, after much effort, none has been found. Each method of execution has not lived up to the hype surrounding its introduction.

Alabama hopes that nitrogen hypoxia will break that pattern.

But in the run-up to Smith’s execution, it has already signaled doubts that a nitrogen hypoxia execution can be carried off without incident. It did so, as a report in The Independent notes, when it “required Smith’s spiritual adviser Reverend Jeff Hood to sign a waiver that forces him to maintain a distance of at least three feet during…the execution.”

The document it wants Hood to sign acknowledges that “it would be possible, though ‘highly unlikely,’ that a hose supplying nitrogen to Smith’s mask detaches from his face, filling an area around him with the potentially deadly odorless, tasteless, invisible gas.”

Rather than shelve its plan to turn Smith into a human guinea pig in the face of this deadly possibility, Alabama wants Hood, as well as other participants in the execution, to assume the risk. This is an offer that no one should accept.

On Wednesday, December 13, Hood filed a lawsuit contesting the state’s insistence that he remain at a distance during Smith’s execution. He contends that Alabama should not be able to deprive him of the right to anoint Smith with oil and administer last rites.

In his view, doing so infringes on his and Smith’s religious liberties.

Here, Hood is building on the Supreme Court’s May 2022 decision upholding the right on religious advisors to pray audibly during executions and to touch the person being put to death. Writing for an eight-person majority, Chief Justice John Roberts reviewed the long history of religious involvement in executions and the important role that clerical figures have played at those events.

“There is a rich history of clerical prayer at the time of a prisoner’s execution, dating back well before the founding of our Nation,” Roberts wrote.

While acknowledging that “maintaining solemnity and decorum in the execution chamber is a compelling governmental interest,” Roberts said that religious liberty required “allowing Pastor Moore (the spiritual advisor to the condemned inmate) to respectfully touch Ramirez’s foot or lower leg inside the execution chamber.”

“We do not see,” the Chief Justice concluded, “how letting the spiritual advisor stand slightly closer, reach out his arm, and touch part of the prisoner’s body well away from the side of any IV line would meaningfully increase risk.”

Hood believes that by asking him to sign a waiver and acknowledge the danger of participating in a nitrogen hypoxia execution Alabama is, as The Independent reports, “deliberately creating an atmosphere as hostile as possible towards religious advisers to discourage their involvement.”

He contends that state officials are “trying to make this process one that they have complete control over. And I can’t think of a more intentional way of controlling a spiritual adviser than making them think that the state is going to kill them for participating.”

Hood’s lawsuit also highlights Alabama’s dismal record in carrying out executions without botching them. Kenny Smith himself survived one of those botched executions last year.

As the Death Penalty Information Center notes, “He spent four hours on November 17, 2022 strapped to an execution gurney while state prosecutors attempted to lift a stay of execution issued by a federal appeals court and his execution team repeatedly failed in attempts to set the intravenous execution line intended to kill him.”

Writhing in agony, Smith cried out for help as he was stuck repeatedly in, as he puts it “the same hole like a freaking sewing machine.’”

Alabama wants a “do-over” using a novel, untested method of execution.

Hood, who has witnessed executions in Alabama and elsewhere, worries that the state will do no better carrying out its second attempt to kill Smith than it did the first time. “‘Without a doubt,’” Hood argues, “the state of Alabama is the most unprofessional, unprepared buffoonery that I have ever seen.”

He has good reason to worry, not just for himself but for Smith.

Numerous studies, The Independent says, “have shown the use of nitrogen gas to deprive healthy humans of oxygen and that after 15 or 20 seconds, around 80 per cent of participants had seizures. Were the inmate to have a seizure they would stop breathing, so how could they continue to inhale the deadly dose of nitrogen?”

Research carried out by the anesthesiology and death penalty expert Joel Zivot has shown “that death by lethal injection involves choking on your own blood about 80 percent of the time. Yet, as bad as that sounds, execution by nitrogen gas will actually be worse…. Inhalation of nitrogen gas rapidly empties the body of life, and a person would know they are dying—from the inside out.”

With nitrogen gas as its execution method, Zivot argues, Alabama wants Smith to die by “pure suffocation. What is so maddening,” he says, “about nitrogen hypoxia is… the propagation of the illusion of the safety of medicine and science.”

Even if it could carry out Smith’s execution without incident, Zivot concludes, nitrogen gas “is a particularly sinister way of killing people.”

In the end, Reverend Hood hopes that his lawsuit will expose the hypocrisy of officials in Alabama who “like to wrap themselves in a cloak of evangelical Christianity,” but want to restrict the religious liberty of those who they wish to put to death. In his view, the state is asking him and everyone else to take it on faith that it won’t botch Smith’s execution and execute him without cruelty.

But cruelty is baked into what Alabama wants to do to Smith as it is in every other moment when the state uses death to punish one of its own citizens.

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